B K MITTAL Vs. SAKYA CENTRE SOCIETY

JUDGEMENT

(1.) Heard Shri Pankaj Miglani, the learned Counsel for the Petitioner and Shri Sharad Sharma, the learned senior Counsel duly assisted by Shri Kovid Bhatt, the learned Counsel for the Respondents.

(2.) The Plaintiff filed a suit for permanent injunction praying that the Defendant should be restrained from interfering in the possession of the Plaintiff on the property in question. During the pendency of the proceedings, the Plaintiff filed an application under Order VI, Rule 17 of the Code of Civil Procedure for amendment of his plaint alleging that by a typographical error, the date of the sale deed has wrongly been mentioned as 17th April, 1994 whereas it should be 17th June, 1994. Certain other clerical errors were also pointed out. It was also alleged that during the pendency, the Plaintiff has been ousted from the premises known as Hawa Mahal and, consequently, this fact was also sought to be brought on record. The Plaintiff, consequently, prayed for the amendment in paragraphs 2, 6, 8, 12, 34, 39 and 41 as well as in the schedule to the plaint and further sought incorporation of paragraph 19-D and 19-A, 36-A and 36-B. An amendment was also sought in the relief clause as well as in the paragraphs relating to Court fee. The said application was resisted by the opposite party. The trial Court, after considering the matter, partly allowed the amendment application and directed the Plaintiff to amend the plaint as per the application made under Order VI, Rule 17 of the Code of Civil Procedure The Trial Court further declined to allow the Plaintiff to incorporate the relief Nos. 1/1 and 1/3 as well as the clause relating to the amendment in the Court fee. The Plaintiff, being aggrieved by the said order, filed a revision before this Court under Section 115 of the Code of Civil Procedure which was subsequently converted into a writ petition under Article 227 of the Constitution of India.

(3.) The Trial Court refused to allow the amendment in the relief clause contending that the said relief had become barred by limitation and, consequently, such amendment could not be allowed. The learned Counsel for the Plaintiff contended that the question as to whether the relief sought to be included in the plaint was barred by limitation or not was a question of fact which is required to be adjudicated after issues were framed and evidence was led and, consequently, at this stage of amendment, such relief could not be refused and the claim of the Plaintiff could not be rejected on the ground that it was barred by limitation. In support of his submission, the learned Counsel placed reliance upon a decision of the Supreme Court in Ragu Thilak D, John v. S. Rayappan and Ors.,1 wherein the Supreme Court held as under: